EdLawConnect Blog

Almost all school districts have been faced with the problem of workplace bullying, but until recently workplace bullying has received little attention compared to bullying prevention efforts for minors and students. Just as national attention on student and minor cyberbullying prompted legislation by many states, now workplace bullying is also receiving attention and has now received legislative action. Spurred by studies regarding the damaging effects of workplace bullying on employees, including reduced productivity, morale, higher absenteeism rates, and frequent employee turnover, California Assembly Member Lorena Gonzalez proposed AB 2053, with the goal of addressing the issue of workplace bullying. Governor Brown signed the legislation yesterday, September 9, 2014.

Under existing law, workplace bullying is generally not illegal unless it also constitutes unlawful discrimination, harassment or retaliation under the California Fair Employment and Housing Act ("FEHA") or the federal Title VII Civil Rights Act of 1964.

State and federal courts have worked to narrow these legal protections so that they do not extend to workplace misconduct beyond what is covered by existing discrimination and harassment laws. In the Title VII context, the Supreme Court has stated that Title VII does not set forth a “general civility code for the American workplace” and the “decision to report discriminatory behavior cannot immunize an employee from petty slights or minor annoyances that all employees experience.” (Burlington Northern & Santa Fe Ry. V. White, 548 U.S. 53, 63, 64 (2004).) According to one California Court of Appeal, FEHA is “not designed to rid the workplace of vulgarity,” and that attempting to impose a civility code, with “human nature being what it is, would be an exercise in futility.” (Lyle v. Warner Bros. Television Productions, 38 Cal.4th 264, 295 (2006); Pantoja v. Anton, 198 Cal.App.4th 87, 93 (2011).)

Recognizing the limitations of state and federal discrimination laws, the proponents of AB 2053 successfully proposed to augment sexual harassment training requirements for supervisors with additional training and education on the prevention of “abusive conduct” in the workplace.

The bill’s definition of “abusive conduct” in the workplace is:

Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance.

While the legislation does not attempt to make abusive conduct in the workplace illegal, it potentially lays the groundwork for more aggressive legislation.

Many school districts already address some of the concerns raised by workplace bullying in their Board Policies and Administrative Regulations at sections 4119.21, entitled Professional Standards. For example, CSBA Sample Policy 4119.21 provides guidance that “[e]mployee conduct should enhance the integrity of the district, advance the goals of the district's educational programs, and contribute to a positive school climate.” AB 2053 reinforces these Board Policies with additional supervisor training on workplace bullying.

Districts currently have internal disciplinary remedies for addressing workplace bullying, and when workplace bullying crosses the line to violence or credible threats of violence, districts have additional protective measures for employees. Code of Civil Procedure section 527.8 authorizes an employer to obtain a workplace restraining order on behalf of an employee against any individual that has committed a violent act, made statements or exhibited a course of conduct against an employee that would place a reasonable person in fear for his safety or the safety of his or her immediate family and serves no legitimate purpose.

In order to obtain a workplace restraining order, employers must show by clear and convincing evidence not only that the aggressor engaged in unlawful violence or made credible threats of violence, but also that irreparable harm would result to an employee without the issuance of a restraining order. (City of San Jose v. Garbett, 118 Cal.Rptr. 3d 420 (2010).)

Workplace restraining orders can restrict personal conduct to prohibit aggressors from harassing, intimidating or disturbing the peace of an employee. Restraining orders can also include stay-away provisions which set distance limits between an aggressor and an employee, the employee’s workplace, home, vehicle, etc.

AB 2053 highlights that workplace bullying is an issue that school districts may and often will have to address among their employees. Awareness of the legal options available for responding to workplace bullying issues will assist Districts in creating a safe and fostering workplace environment for their employees.

Mary Beth de Goede has exclusively represented school and community college districts in employment law, personnel and labor relations, and general public school law for over 30 years. She has served as the principal legal advisor ...